From November
2001 Update
Chapter 1 - Practice Tips and Preliminary
Considerations
§100 Introduction
§101 Discovery Practice Tips
§101.1 Limitations on Interrogatory Discovery
§101.2 Chart: State-by-State Discovery Limitations
§101.3 Interrogatories or Deposition First?
§102 Definitions
§110 Enforcing Interrogatory Discovery
§111 Responding to Interrogatories
§111.1 Response by Answer
§111.2 Response by Objection
§111.3 Answering Interrogatories by Supplying Records
§111.4 Extension of Time in Which to Respond
§111.4.1 Sample: Letter Confirming an Extension of Time in Which to
Respond to Interrogatories
§112 Meet and Confer Requirements
§112.1 Sample: Compliance with Meet and Confer Requirement
§113 Sample: Motion to Compel Answers
§114 Compelling Further Responses to Interrogatories
§114.1 Sample: Motion to Compel Further Responses
§115 Compelling Further Responses to Interrogatories—Contention
Interrogatories
§115.1 Sample: Motion to Compel Further Responses to Contention
Interrogatories
§120 Use of Interrogatory Responses at Trial
§121 Use by Propounding Party Against Responding Party
§122 Use by Responding Party Against Propounding Party
§123 Use by Third Parties Against Responding Party
§124 Use by Third Party Against Propounder
§125 Use by Propounder Against Third Party
§126 Using Interrogatory Answers for Evidentiary Preclusion
§127 Factually Devoid Interrogatory Responses as Basis for Summary
Judgment
Chapter 2 - General Interrogatories—Background and
Investigation
§200 Litigants Acting in Representative Capacity
§210 Identification
§211 Specific Party
§211.1 General Interrogatories
§211.2 Address
§211.3 Birth Information
§211.4 Education
§211.5 Military Record
§211.6 Marital Status
§211.7 Children
§211.8 Employment
§211.9 Criminal Record
§212 Relationship to Persons Identified in Responses
§213 Agency
§220 Injuries and Prior Illnesses
§221 General Interrogatories
§222 Failure to Follow Medical Advice
§223 Prior Claims
§230 Investigatory Interrogatories
§231 Opposing Party's Investigation
§232 Opposing Party's Surveillance
§233 Photographs
§233.1 Photographs re Incident
§233.2 Photographs re Scene
§233.3 Photographs re Vehicle
§233.4 Photographs re Injuries
§234 Charts and Diagrams
§235 Physical Evidence
§236 Required Reporting
§240 Witnesses and Investigations
§241 Lay Witnesses
§242 Expert Witnesses Identification
§250 Miscellaneous
§251 Insurance
§252 Other Claims Against Defendant re This Incident
§253 Tender of Defense/Indemnity
§254 Settlement Agreements
§255 Due Diligence in Preparation of Response
§256 Contention Interrogatory Follow-Ups
§256.1 Bases for Contention: Facts, Witnesses, and Documents
§256.2 Bases for Denial or Refusal to Admit: Facts, Witnesses, and
Documents
Chapter 3 - General Interrogatories—Damages,
Defenses and Denials
§300 Introduction
§310 General Damages
§311 General Interrogatories
§312 Emotional Distress—Witnessing Harm to Third Person
§312.1 Plaintiff to Defendant
§312.2 Defendant to Plaintiff
§313 Death of Decedent
§314 Loss of Consortium
§314.1 Plaintiff to Defendant
§314.2 Defendant to Plaintiff
§315 Defendant's Contentions re Apportionment of Damages
§320 Special and Punitive Damages
§321 General Interrogatories
§322 Special Damages—Defendant's Contentions
§322.1 General Contentions
§322.2 Plaintiff's Failure to Mitigate
§323 Punitive Damages
§323.1 Pretrial Discovery Regarding Financial Condition
§323.2 Sample: Motion for Order Permitting Discovery of
Defendant’s Profits and Financial Condition
§323.3 Plaintiff to Defendant
§323.3.1 Malice
§323.3.2 Oppression
§323.3.3 Ratification of Agent's Acts
§323.4 Defendant to Plaintiff
§330 Compensation From Collateral Sources
§340 Affirmative Defenses and Denials
§341 Contentions and Related Facts
§342 Alcohol and Drugs-Plaintiff to Defendant
§343 Contributory and Comparative Negligence
§343.1 “Pure” Comparative Negligence
§343.2 Modified (“Less Than”) Comparative Fault
§343.3 Modified (“Not Greater Than”) Comparative Negligence
§343.4 Imputed Contributory or Comparative Negligence
§344 Assumption of Risk
§345 Preexisting Injuries
§346 Joint and Several Liability
§347 Defendant's Contentions re Third Party Emotional Distress Claims
§348 Defendant's Contentions re Negligence Per Se
Chapter 4 - Vehicular Negligence
§400 Elements of Plaintiff’s Cause of Action
§410 Definitions
§420 Occurrence Interrogatories
§421 Accident Facts
§421.1 Involvement in Accident
§421.2 Location
§421.3 Causes
§421.4 General Details
§421.5 Defendant’s Activities on Day of Accident
§421 6 Plaintiff’s Speed
§421.7 Defendant’s Speed
§421.8 Defendant’s Exercise of Due Care
§421.9 Visibility
§421.10 Vision and Hearing
§421.11 Roadway Details
§421.12 Traffic Regulations, Traffic Lights and Stop Signs
§421.13 Fatigue
§421.14 Alcohol and Drugs (Defendant)
§421.15 Driving Experience and License Status
§421.16 Supplying Alcohol to Vehicle Driver
§421.17 Automobile v. Bicycle/Motorcycle Accidents
§421.18 Automobile v. Pedestrian Incidents
§422 Negligent Transfer
§430 Equipment Repairs and Defects
§431 Use and Prior Repairs of Vehicle
§432 Equipment Defects
§432.1 Pre-incident Knowledge of Defect
§433 Post-incident Condition of Opposing Party’s Vehicle
§440 Affirmative Defenses and Denials
§440.1 Contentions and Related Facts
§441 Alcohol and Drugs (Plaintiff)
§442 Contributory and Comparative Negligence
§443 Assumption of Risk
§444 Pre-existing Injuries
§445 Seat Belt Defense
§446 Joint and Several Liability
§447 Defendant’s Contentions—Third Party Emotional Distress
Claims
§448 Defendant’s Contentions—Negligence Per Se
§450 Investigatory Interrogatories
§451 Personal Data
§451.1 Health Before and After Accident
§451.2 Felony Convictions
§451.3 Signatories to Defendant’s Driver’s License
§452 Vehicle Data
§452.1 Prior Accidents—This Vehicle
§452.2 Ownership, Permissive Use and Occupancy
§452.2.1 Statutory Liability—Owner’s Consent
§452.2.2 Negligent Entrustment
§452.3 Ownership—Chain of Title
§452.4 Vehicle Records
§453 Business Data
§454 Police and Public Entity Investigation
§454.1 Citations
§455 Investigations by Others
§456 Defendant’s Activities Following Accident
§460 Third-Party Information
§461 Responding Party’s Relationship to Person Identified in
Responses
§462 Experts
§463 Photographs, Movies, Drawings and Reports
§464 Surveillance
§470 Insurance
§471 Claims Against Defendant—This Incident
§480 Due Diligence in Preparation of Response
§490 Deposition Checklists
§491 Deposition of Defendant
§491.1 General Background
§491.2 Facts Pertaining to Accident
§491.3 Statements by Parties, Witnesses
Chapter 5 - Premises Liability
§500 Elements of Plaintiff’s Cause of Action
§510 Definitions
§520 Occurrence Interrogatories
§521 Knowledge of Incident
§522 Details of Occurrence
§523 Injuries to Plaintiff
§530 Plaintiff’s Status on Premises
§530.1 Defendant’s Contentions re Status
§530.2 Plaintiff’s Contentions re Status
§531 Duties to Plaintiff
§531.1 Invitee
§531.2 Licensee
§531.3 Trespasser
§531.4 Plaintiff Exceeding Scope of Invitation
§532 Known Trespasser
§533 Defendant’s Efforts to Warn of Danger
§534 Defective Premises—Obvious Danger
§540 Information Regarding the Premises
§541 Ownership and Maintenance
§542 Identification of Defendant/Business Status
§543 Description and Construction
§543.1 Original Construction
§544 Condition of Premises
§544.1 Lighting
§544.2 Obstructions to Vision
§544.3 Distractions to Vision
§545 Weather Conditions
§550 Knowledge of Dangerous Condition
§551 Inherent Dangers and Imputed Notice
§552 Circumstantial Notice (Subsequent Repairs)
§553 Inspection of Premises
§554 Prior Warnings
§555 Notice of Safety Code Violations
§556 Attractive Nuisance
§557 Criminal Assault by Third Person
§560 Affirmative Defenses and Denials; Admissions
§560.1 Defendant’s Contentions
§560.2 Defendant’s Contentions—Warning of Dangerous
Conditions
§561 Plaintiff’s Conduct
§562 Alcohol and Drugs
§563 Admissions
§564 Governmental Immunities
§565 Defendant’s Contentions-Negligence Per Se
§570 Investigatory Interrogatories
§571 Required Reporting
§572 Investigation of Plaintiff
§573 Photographs, Charts and Physical Evidence
§574 Prior Accidents
§575 Witnesses
§576 Expert Identification
§580 Insurance
§581 Tender of Defense Indemnity
§590 Due Diligence in Preparation of Response
§595 Deposition Checklists
§596 Deposition of Defendant
§596.1 General Background
§596.2 Facts Pertaining to Accident
§596.3 Information Regarding Premises
§596.4 Plaintiff’s Status on Premises
§596.5 Defendant’s Knowledge of Dangerous Condition
§596.6 Statements by Parties, Witnesses
§596.7 Photographs re Injuries
§596.8 Surveillance Conducted by Opposing Party
§596.9 Insurance
Chapter 6 - Product Liability
§600 Elements of Plaintiff’s Cause of Action
§601 Theories of Recovery
§601.1 Liability for Negligence
§601.2 Unavoidably Unsafe Products
§601.3 Strict Liability in Tort
§601.4 Commercial Supplier
§601.5 Manufacturing Defects
§601.6 Design Defects
§601.7 Failure to Warn
§601.8 Breach of Express Warranty/Misrepresentation
§601.9 Breach of Implied Warranties
§602 Defenses in Product Liability Action
§602.1 Contributory/Comparative Negligence
§602.2 Assumption of the Risk
§602.3 Product Misuse
§610 Definitions
§620 Identifying Interrogatories
§621 Defendant Manufacturer
§622 Product Manufacturer
§623 Manufacturer-Market Share Liability
§624 Dealers in Secondhand Merchandise
§625 Endorser Liability
§630 Product Design and Testing
§631 Product Specifications
§632 Oversight and Production Supervision
§633 Product Design
§633.1 Government Design Standards
§633.2 Defendant’s Contentions—Negligence Per Se
§633.3 Compliance With Federal Standards
§633.4 Compliance With Federal Design Standards—Defendant to
Plaintiff
§633.5 Defendant’s Contentions Re Consumer Expectation Test
§633.6 Defendant to Plaintiff—Consumer Expectation Test
§634 Learned Treatises
§635 Patents
§636 State of the Art
§637 Safety Tests
§640 Product Marketing
§641 Sale of Subject Product
§642 Distribution
§643 Warranty of Product
§644 Advertising
§645 Prior Warnings
§646 Instructions
§647 Intervening Negligence of Retailer
§650 Subsequent Measures and Foreseeable Misuses
§651 Design Improvements
§652 Subsequent Safety Measures or Devices
§653 Anticipated Use of Product
§654 Anticipated Misuse of Product
§660 Factors Contributing to Consumer’s Safety Risk
§661 Defendant’s Contention of Injury Cause
§662 Alteration or Modification of Product
§663 Useful Life Expectancy of Product
§664 Unavoidably Unsafe Products
§665 Defendant’s Contentions re Plaintiff’s Comparative Fault
§665.1 Pure Comparative Fault
§665.2 Modified (“Less Than”) Comparative Fault
§665.3 Modified (“Not Greater Than”) Comparative Negligence
§666 Assumption of Risk
§667 Safety Organization Affiliation
§670 Prior Claims and Injuries
§671 Prior Contentions of Defectiveness
§672 Prior Knowledge of Defectiveness
§673 Legal Actions and Suits
§674 Similar Claims and Legal Proceedings
§680 Product Examination
§681 Reports by Third Parties
§682 Product Recall
§690 Miscellaneous Interrogatories
§691 Affirmative Defenses and Denials
§692 Investigatory Interrogatories
§693 Tender of Defense/Indemnity
§694 Due Diligence in Preparation of Response
§695 Deposition Checklists
§696 Deposition of Defendant’s Person Most Knowledgeable
§696.1 General Background
§696.2 Product Testing and Design
§696.3 Additional Facts Regarding Product
§696.4 Facts Pertaining to Incident
§696.5 Defendant’s Contentions Regarding Incident Causation
§696.6 Statements by Parties, Witnesses
§696.7 Surveillance Conducted by Opposing Party
§696.8 Insurance
Chapter 7 - Insurance Bad Faith
§700 Elements of Plaintiff’s Cause of Action
§701 Breach of Covenant of Good Faith and Fair Dealing
§701.1 Formation of Insurance Contract
§701.2 Conduct Violating the Covenant
§702 Statutory Liability—Violation of Unfair Practices Act
§703 Statutory Liability—Violation of the Fair Insurance
Responsibility Act
§704 Additional Causes of Action
§710 Definitions
§720 Basic Insurer Information
§721 Identification
§722 Business Format
§723 Qualification Data
§730 Basic Policy Information
§731 Issuance
§732 Individuals Involved
§733 Persons Entitled to Policy Benefits
§734 Persons/Entities Purchasing Policy
§735 Coverages and Limits
§735.1 Automobile
§735.2 Property, Casualty and Liability
§735.3 Life Insurance
§735.4 Disability
§735.5 Health
§736 Effective Date
§737 Lapse, Rescission, and Cancellation
§738 Identification of Endorsements
§740 First Party Cases
§741 Receipt of Claim for Policy Benefits
§742 Cause for Withholding Policy Benefits
§743 Cause for Non-Coverage Claim
§744 Cause for Partial Payment
§745 Cause for Delay in Payment
§746 Disability Policies/Denial of Claim
§746.1 Claim of Total Disability
§746.2 Substantial and Material Duties of Employment
§746.3 Partial Disability
§746.4 Pre-existing Illness
§747 Medical Insurance Policies—Reasons for Non-payment
§748 Insurer Claim Investigation
§748.1 Establishment of Claim File
§748.2 Written Standards
§748.3 Establishment of Loss Reserve
§748.4 Nature and Extent of Investigation
§748.5 Experts Utilization
§748.6 Investigation by Others
§748.7 Insured or Claimant Conduct Regarding Investigation
§748.8 Claim Evaluation
§748.9 Persons Involved in Claim Evaluation
§749 Delay in Processing and Investigation
§749.1 Delay in Payment
§749.2 Delay in Communication With Insured
§750 Third Party Cases—Excess Liability
§751 Opportunity to Settle Within Policy Limits
§752 Nature and Extent of Settlement Negotiations
§753 Reasons for Rejection of Settlement Demand
§753.1 General Information
§753.2 Likelihood of Excess Judgment
§753.3 Insured’s Conduct
§753.4 Coverage Disputes
§753.5 Existence of Competing Claims
§753.6 Ambiguous Settlement Proposal
§754 Communication of Offer to Insured
§755 Failure to Investigate
§756 Claim Evaluation
§757 Advice of Counsel
§758 Offer Exceeding Policy Limits
§760 Third Party Cases—Duty to Defend
§761 Contractual Duty to Defend
§761.1 Notice of Claim
§761.2 Denial of Coverage
§761.3 Demand to Provide Defense
§762 Decision to Deny Defense
§763 Factors Considered in Decision to Refuse Defense
§764 Persons Involved in Evaluation of Duty to Defend
§765 Denial Based on Claim of Non-coverage
§766 Investigation of Facts Relating to Coverage
§767 Adequacy of Defense and Selection of Counsel
§768 Retention of Consulting Experts
§769 Insured’s Conduct
§769.1 Stipulated Judgment Following Failure to Defend—Defendant
to Plaintiff
§770 Claims Under Unfair Practices Act
§771 Misrepresentations to Claimants
§772 Adoption and Implementation of Investigation and Processing
Standards
§773 Failure to Communicate With Claimant/Insured
§774 Failure to Settle
§775 Claims for Similar Conduct
§776 Comparative Fault on Part of Insured/Claimant
§777 Advice of Counsel Defense
§778 Damages, Investigations, and Related Issues
§778.1 Claim of Emotional Distress Damages—Defendant to Plaintiff
§778.2 Claim for Payment of Attorney’s Fees in First Party
Cases—Defendant to Claimant
§778.3 Economic Damages Following Insurer’s Refusal to
Settle—Defendant to Plaintiff
§778.4 Claims for Similar Conduct
§780 Claims Under the Fair Insurance Responsibility Act of 2000
§781 Basic Information Regarding Parties and Policy Issuance
§782 Violation of the Unfair Claims Practices Act
§783 Damages Sought in the Underlying Claim
§784 Exclusion of Claimants Convicted of Certain Motor Vehicle Offenses
§785 Demand Within the Policy Limits
§786 Honest Mistake in Judgment Defense
§787 Damages and Claims Under the Fair Insurance Responsibility Act
§790 Due Diligence in Preparation of Response
§795 Deposition Checklists
§796 Deposition of Defendant’s Person Most
Knowledgeable—First Party Bad Faith
§796.1 General Background
§796.2 Basic Facts Relating to Defendant Insurer
§796.3 Basic Policy Information
§796.4 Denial or Withholding of Policy Benefits
§796.5 Claim Investigation and Processing by Insurer
§796.6 Facts Pertaining to Incident Giving Rise to Insurance Claim
§796.7 Statements by Parties, Witnesses Regarding Incident Giving Rise
to Insurance Claim
§796.8 Surveillance Conducted by Opposing Party re Underlying Incident
§796.9 Statements by Parties, Witnesses Regarding Insurance Claim
§797 Deposition of Defendant’s Person Most
Knowledgeable—Third Party Bad Faith
§797.1 General Background
§797.2 Basic Facts Relating to Defendant Insurer
§797.3 Basic Policy Information
§797.4 Third Party Bad Faith – Failure to Defend
§797.5 Third Party Bad Faith – Failure to Indemnify
§797.6 Claim Investigation and Processing by Insurer
§797.7 Facts Pertaining to Incident Giving Rise to Insurance Claim
§797.8 Statements by Parties, Witnesses Regarding Incident Giving Rise
to Insurance Claim
§797.9 Statements by Parties, Witnesses Regarding Insurance Bad Faith
Claim
§797.10 Surveillance Conducted by Opposing Party re Facts of Insurance
Bad Faith Claim
Chapter 8 - Legal Malpractice
§800 Elements of Plaintiff’s Cause of Action
§801 Duty of Care
§802 Breach of Duty
§803 Proximate Cause
§804 Damages
§810 Definitions
§820 Defendant’s Relationship to Plaintiff
§821 Fact of Retention
§822 Scope of Retention
§823 Documentation of Retention
§824 Modification of Retention
§825 Beneficiary of Third Party Retention—Opinion Letter
§826 Beneficiary of Third Party Retention—Benefit Conferred on
Plaintiff
§830 Applicable Standards of Care
§831 Extent of Attorney Knowledge
§832 Specialized Knowledge
§833 Rules of Professional Conduct
§840 Alleged Errors and Omissions—Litigation
§841 Representation of Conflicting Interests
§842 Expired Statute of Limitations
§843 Failure to Proceed Diligently—Insolvent Defendant
§844 Erroneous Settlement Recommendations
§845 Defense Counsel—Failure to Appear
§846 Defense Counsel—Failure to Assert Claim or Defense
§847 Defense Counsel—Failure to Investigate
§850 Alleged Errors and Omissions—Errors in Judgment
§851 Legal and Factual Basis for Recommendation
§852 Legal Basis for Settlement Recommendation
§853 Recommended Division of Marital Property
§854 Tax Consequences of Recommended Division
§855 Failure to Disclose Error
§860 Causation
§861 General Facts Regarding Underlying Claim
§861.1 Defendant’s Contentions Re Outcome of Underlying Claim
§862 Knowledge Possessed by Retained Consultant
§863 Collectible Insurance re Underlying Claim
§863.1 Collection of Lost Punitive Damages
§864 Extent of Plaintiff’s Injury in Underlying Claim
§865 Limitation of Plaintiff’s Activities in Underlying Claim
§866 Extent of Medical Treatment in Underlying Claim
§867 Loss of Earnings in Underlying Claim
§868 Loss of Earning Capacity in Underlying Claim
§869 Defendant’s Contentions re Plaintiff’s Damages
§870 Failure to Mitigate Damages
§880 Affirmative Defenses
§881 Contributory/Comparative Negligence
§882 Imputed Comparative Negligence and Comparative Indemnity
§883 Assumption of Risk
§884 Affirmative Release
§885 Ratification
§886 Judgmental Immunity
§887 Statute of Limitations
§887.1 Plaintiff to Defendant
§887.2 Defendant to Plaintiff
§890 Due Diligence in Preparation of Response
Chapter 9 - Malicious Prosecution
§900 Introduction
§910 Elements of Plaintiff’s Cause of Action
§920 Definitions
§930 Initiation of the Subject Legal Action
§940 Prosecution of the Subject Legal Action
§950 Initiation Without Probable Cause
§960 Legal and Factual Investigation
§961 Factual Investigation
§961.1 Successor Counsel
§962 Facts Related by Client
§963 Pre-Filing Legal Research
§970 Favorable Termination
§980 Defendant to Plaintiff—Damage Interrogatories
§980.1 Economic Damages
§980.2 Emotional Distress Damages
§980.3 Loss of Earnings
§990 Due Diligence in Preparation of Response
Chapter 10 - Wrongful Death and Survival Actions
§1000 Introduction
§1001 Defenses in Wrongful Death and Survivorship Cases
§1010 Definitions
§1020 Identification of Party
§1021 Identification in General
§1022 Business Structure
§1023 Address
§1024 Agency
§1025 Litigants Acting in a Representative Capacity
§1030 Auto Accident
§1031 Location
§1032 Causes
§1033 Accident Details
§1033.1 Decedent’s Speed
§1033.2 Defendant’s Speed
§1033.3 Roadway Details
§1033.4 Alcohol and Drugs (Defendant)
§1033.5 Equipment Defects
§1033.5.1 Pre-accident Knowledge of Defect
§1033.6 Ownership, Permissive Use and Occupancy
§1034 Investigation of Accident Cause
§1035 Witnesses
§1036 Insurance
§1040 Dangerous Condition of Property
§1041 Details of Occurrence
§1041.1 Ownership and Maintenance of Premises
§1041.2 Identification of Defendant/Business Status
§1042 Knowledge of Dangerous Condition
§1042.1 Inherent Dangers and Imputed Notice
§1042.2 Circumstantial Notice (Subsequent Repairs)
§1042.3 Inspection of Premises
§1050 Defective Product
§1051 Identification of Product Manufacturer
§1052 Product Design
§1053 Product Marketing
§1053.1 Sale of Subject Product
§1053.2 Distribution
§1053.3 Instructions re Product Use
§1060 Medical Malpractice
§1061 Scope of Physician Undertaking
§1062 Documentation Regarding Physician-Patient Relationship
§1063 Failure to Diagnose
§1064 Administration of Medications
§1065 Identification of Operative Procedure
§1066 Postoperative and Discharge Procedures
§1067 Informed Consent
§1068 Failure to Obtain Required Tests
§1070 Defenses
§1071 Affirmative Defenses and Denials
§1072 Alcohol and Drugs (Plaintiffs Decedent)
§1073 Imputed Contributory or Comparative Negligence
§1074 Assumption of Risk
§1075 Joint and Several Liability
§1076 Claimant’s Conduct
§1077 Decedent’s Conduct
§1078 Admissions by Decedent
§1079 Decedent’s Health Before Accident
§1079.1 Pre-existing Conditions
§1080 Damages
§1081 General Damages
§1082 Special Damages-General Interrogatories
§1083 Lost Care, Comfort, Society and Affection
§1084 Out-of-Pocket Losses
§1085 Burial Expenses
§1086 Survivorship Actions—Decedent’s General Damages
§1087 Survivorship Actions—Decedent’s Special Damages
§1090 Miscellaneous Investigatory Interrogatories
§1091 Compensation from Collateral Sources
§1092 Witnesses/Investigations
§1093 Expert Identification
§1094 Insurance
§1095 Tender of Defense/Indemnity
§1096 Persons Contributing Information to Answers
Chapter 11 - Medical Malpractice
§1100 Elements of Plaintiff
§1101 Duty
§1102 Breach of Duty
§1103 Cause in Fact
§1104 Proximate Cause
§1105 Damages
§1110 Definitions
§1120 Identification of Defendant
§1130 Education, Training, Certification and Licensure of Defendant
§1131 Education
§1132 Specialties, Continuing Education and Teaching
§1133 Certification and Licensure
§1140 Defendant’s Relationship to Plaintiff
§1141 Scope of Physician Undertaking
§1142 Documentation Regarding Physician/Patient Relationship
§1150 Alleged Errors and Omissions
§1151 Failure to Diagnose
§1151.1 Delayed Diagnosis
§1152 Administration of Medications
§1153 Consultation and Referral
§1154 Surgery
§1154.1 Identification of Operative Procedure
§1154.2 Sterile Operative Field
§1154.3 Administration and Monitoring of Anesthetic
§1154.4 Foreign Objects Left in Patient
§1154.5 Postoperative Management and Complications
§1154.6 Postoperative and Discharge Procedures
§1155 Neurosurgery
§1156 Fetal Distress—Diagnosis and Response
§1157 Wrongful Birth and Wrongful Life
§1158 Informed Consent
§1159 Hospital Liability—Employment or Retention of Defendant
Physician
§1160 Causation
§1161 Failure to Obtain Required Tests
§1162 Failure to Diagnose
§1163 Failure to Treat
§1164 Pre-existing Conditions
§1170 Affirmative Defenses and Denials
§1171 In General
§1172 Comparative Negligence
§1173 Assumption of Risk
§1174 Defendants Contentions re Failure to Disclose Symptoms
§1175 Defendants Contentions re Failure to Follow Directions or
Warnings
§1176 Defendants Contentions re Failure to Report Complications
§1177 Defendants Contentions re Failure to Take Prescribed Medications
§1178 Defendants Contentions re Plaintiff’s Special Damages
§1179 Defendants Contentions re Plaintiff’s Failure to Mitigate
§1180 Defendant’s Contentions re Collateral Sources
§1190 Miscellaneous
§1191 Witnesses and Investigations
§1192 Nature and Extent of Insurance
§1193 Due Diligence in Preparation of Response
Chapter 12 - Governmental Tort Liability
§1200 Introduction
§1201 Analyzing Plaintiff’s Claim: Liability of Public Entities
§1202 Analyzing Plaintiff’s Claim: Liability of Public Officers or
Employees
Checklist: Analyzing Government Tort Liability Claims
§1203 Defenses in Government Tort Liability Cases
§1210 Definitions
§1220 Dangerous Condition of Public Property
§1221 “Public” Status of Property
§1222 Partial Ownership by Public Entity
§1223 Control of Nonowner Property
§1224 Identification of Parties Who Constructed the Subject Premises
§1230 Occurrence Interrogatories
§1231 Knowledge of Incident
§1232 Details of Occurrence
§1233 Injuries to Plaintiff
§1234 Knowledge and Notice of Defect
§1234.1 Inherent Dangers and lmputed Notice
§1234.2 Circumstantial Notice (Subsequent Repairs)
§1234.3 Prior Warnings
§1240 Immunities and Defenses
§1241 Reasonableness of Entity’s Conduct
§1242 Design Immunity
§1242.1 Authorization by Public Body
§1242.2 Reasonableness of Approval
§1242.3 Injury Caused by Approved Feature of Design
§1242.4 Changed Circumstances
§1242.5 Failure to Warn
§1243 Defective Traffic Signals
§1250 Miscellaneous Liabilities of Public Entities
§1251 Police and Correctional Activities
§1251.1 Medical Care to Prisoner
§1251.2 Negligent Retention of Unfit Police Officer
§1252 Duty to Warn of Impending Release
§1253 Public Medical and Hospital Facilities
§1253.1 Failure to Provide Sufficient Equipment or Personnel
§1253.2 Failure to Admit Medical Facility
§1260 Liability of Public Employees
§1261 General Rules of Public Employee Liability
§1262 Police and Correctional Activities
§1263 False Arrest and Imprisonment
§1264 Injuries to Prisoners
§1265 Use of Excessive Force During Arrest
§1266 Public Hospital and Health Facilities
§1267 Motor Vehicle Negligence
§1270 Damages in Public Liability Cases
§1271 General Damages
§1272 General Damages—Death of Decedent
§1273 Special Damages
§1273.1 Defendant’s Contentions re Plaintiff’s Special
Damages
§1273.2 Defendant’s Contentions re Failure to Mitigate Damages
§1274 Compensation From Collateral Sources
§1280 Affirmative Defenses and Denials
§1281 Contentions and Related Facts
§1282 Alcohol and Drugs (Plaintiff)
§1283 Plaintiff’s Contributory and Comparative Negligence
§1283.1 Imputed Contributory or Comparative Negligence
§1284 Assumption of Risk
§1285 Pre-existing Injuries
§1286 Seat Belt Defense
§1287 Joint and Several Liability
§1290 Investigatory Interrogatories
§1291 Third-Party Information—Witnesses
§1291.1 Relationships and Acquaintances
§1292 Statements Regarding Incident
§1293 Expert Identification
§1294 Photographs
§1294.1 Charts and Diagrams
§1295 Surveillance
§1296 Insurance
§1297 Due Diligence in Preparation of Response
Chapter 13 - Wrongful Termination of Employment
§1300 Elements of Plaintiff’s Cause of Action
§1310 Definitions
§1320 Basic Information
§1321 Information Regarding Employer
§1321.1 Identification of Employer
§1321.2 Business Format of Employer
§1321.3 Personal Data Regarding Employer
§1321.4 Similar Claims and Legal Proceedings
§1322 Information Regarding Plaintiff
§1322.1 Employment History
§1322.2 Prior Actions for Wrongful Discharge
§1322.3 Miscellaneous Personal Information
§1330 Terms of Employment
§1331 Plaintiff to Defendant
§1331.1 Hiring of Plaintiff
§1331.2 Individuals Involved in Hiring Decision
§1331.3 Terms of Written Employment Agreement
§1331.4 Integration
§1331.5 Modification
§1331.6 Oral Employment Agreement
§1331.7 Defendant’s Representations
§1331.8 Policy Manual—Objective Performance Criteria
§1331.9 Policy Manual—Disciplinary Procedures
§1332 Defendant to Plaintiff
§1332.1 Facts of Hire
§1332.2 Persons Involved in Hiring
§1332.3 Written Employment Agreement
§1332.4 Oral Employment Agreement
§1332.5 Implied In Fact Agreement Regarding Termination
§1332.6 Policy Manual—Objective Performance Criteria
§1340 Termination of Employment
§1341 Procedure—Plaintiff to Defendant
§1341.1 Basic Facts Regarding Termination
§1341.2 Persons Involved in Decision to Terminate Employment
§1341.3 Communication of Notice to Plaintiff
§1341.4 Notice of Termination
§1341.5 Persons Involved in Notice of Termination
§1341.6 Consideration of Applicable Personnel Policies
§1341.7 Reduction in Force Termination
§1342 Claim of Good Cause for Termination—Plaintiff to Defendant
§1342.1 Performance Criticisms
§1342.2 Performance Reviews
§1342.3 Training and Other Corrective Measures
§1342.4 Consideration of Other Discipline Options
§1342.5 Comparison to Performance of Other Employees
§1342.6 Violation of Company Policy
§1343 Procedure—Defendant to Plaintiff
§1343.1 Facts Regarding Termination
§1343.2 Reduction in Force Terminations
§1344 Claim of Good Cause for Termination—Defendant to Plaintiff
§1344.1 Performance Criticisms
§1344.2 Performance Reviews
§1344.3 Training and Corrective Measures
§1344.4 Alternatives to Termination
§1344.5 Comparative Job Performance
§1345 Claim That Termination Violated Public Policy
§1350 Affirmative Defenses and Denials
§1351 Contentions and Related Facts
§1352 Failure to Exhaust Internal Remedies
§1353 Failure to Exhaust Administrative Remedies
§1354 Collateral Estoppel Defense
§1355 Managerial Discretion Defense
§1356 Statutory Preemption
§1360 Damages
§1361 Defendant to Plaintiff
§1361.1 Back Pay
§1361.2 Front Pay
§1361.3 Pension and Retirement Benefits
§1361.4 Medical Benefits
§1361.5 Other Fringe Benefits
§1361.6 Emotional or Mental Distress
§1361.7 Harm to Reputation
§1361.8 Failure to Mitigate Damages
§1361.9 Punitive Damages
§1362 Plaintiff to Defendant
§1362.1 Back Pay
§1362.2 Front Pay
§1362.3 Lost Pension and Retirement
§1362.4 Lost Vacation and Sick Leave
§1362.5 Lost Medical Coverage
§1362.6 Defendant’s Contentions re Emotional Distress Damages
§1362.7 Defendant’s Contentions re Failure to Mitigate Damages
§1370 Investigatory Interrogatories
§1371 Witnesses
§1372 Expert Identification
§1373 Surveillance
§1380 Insurance
§1390 Due Diligence in Preparation of Response
Chapter 14 - Liability Insurance: Agent and Broker
Liability
§1400 Elements of Plaintiff’s Cause of Action
§1401 Legal Duty “Broker” v. “Agent”
§1402 Breach of Duty
§1403 Cause in Fact
§1404 Proximate Cause
§1405 Damages
§1406 Contract v. Tort Causes of Action
§1407 Defenses in Producer Liability Cases
§1410 Definitions
§1420 Identification of Defendant
§1421 Defendant’s Status as Broker or Agent
§1421.1 Defendant as “Agent”
§1421.2 Defendant as “Broker”
§1430 Education, Training, and Licensure of Defendant
§1431 Education
§1432 Specialties, Continuing Education and Teaching
§1433 Certification and Licensure
§1440 Defendant’s Relationship to Plaintiff
§1441 Fact of Engagement
§1442 Scope of Engagement
§1443 Documentation of Engagement
§1444 Modification of Engagement
§1450 Alleged Errors and Omissions
§1451 Coverage
§1451.1 Failure to Obtain Coverage
§1451.2 Failure to Notify of Inability to Obtain Coverage
§1451.3 Failure to Place Coverage With Authorized Insurer
§1451.4 Failure to Recommend Expanded Coverage Based on Apparent Risk
§1451.5 Reduction in Coverage Limits
§1451.6 Failure to Keep Coverage in Force
§1452 Failure to Identify Insurance Needs of Client
§1453 Failure to Investigate Financial Solvency of Carrier
§1454 Failure to Process Claim
§1455 Negligent Preparation of Application
§1460 Causation
§1470 Damages
§1471 Consequential Damages
§1480 Affirmative Defenses and Denials
§1481 Comparative Negligence
§1482 Assumption of Risk
§1483 Plaintiff’s Rejection of Coverage
§1484 Plaintiff’s Conduct Vitiating Coverage
§1485 Plaintiff’s Failure to Discover Limitations in Coverage
§1486 Plaintiff’s Failure to Mitigate Damages
§1487 Joint and Several Liability
§1488 ERISA Preemption
§1488.1 ERISA Preemption—Plaintiff to Defendant
§1488.2 ERISA Preemption—Defendant to Plaintiff
§1490 Investigatory Interrogatories
§1491 Third Party Information
§1491.1 Relationships and Acquaintances
§1491.2 Experts
§1492 Conversations and Statements Regarding the Underlying Loss
§1493 Photographs, Movies, Drawings and Reports
§1493.1 Photos, Movies and Videos
§1493.2 Drawings, Graphic Representations
§1493.3 Reports
§1494 Surveillance
§1495 Insurance
§1496 Other Claims Against Defendant Pertaining to Same Facts
§1497 Due Diligence in Preparation of Response
Chapter 15 - Sexual Harassment
§1500 Introduction
§1501 Quid Pro Quo Harassment
§1501.1 Elements of Plaintiff’s Cause of Action
§1501.1.1 Membership in Protected Group
§1501.1.2 Unwelcome Sexual Conduct
§1501.1.3 Conduct Based Upon Sex
§1501.1.4 Employment Action Affecting “Term, Condition or
Privilege” of Employment
§1501.2 Bases for Employer Responsibility
§1501.3 Employer Defenses
§1502 Hostile Working Environment
§1502.1 Elements of Plaintiff’s Cause of Action
§1502.1.1 Membership in Protected Group
§1502.1.2 Unwelcome Conduct of Sexual Nature
§1502.1.3 Affecting Term or Condition of Employment
§1502.1.4 Based Upon Sex
§1502.2 Employer Liability
§1502.3 Employer Defenses
§1503 Damages
§1504 Other Theories of Recovery
§1505 Definitions
§1510 Basic Information
§1511 Information Regarding Employer
§1511.1 Employer’s Business Format
§1511.2 Personal Data Regarding Employer
§1511.3 Similar Claims and Legal Proceedings
§1512 Information Regarding Plaintiff
§1512.1 Employment History
§1512.2 Prior Sexual Harassment Actions
§1512.3 Miscellaneous Personal Information
§1520 Terms of Employment
§1521 Plaintiff to Defendant
§1521.1 Hiring of Plaintiff
§1521.2 Written Employment Agreement
§1521.3 Oral Employment Agreement
§1522 Defendant to Plaintiff
§1522.1 Fact of Hire
§1522.2 Written Employment Agreement
§1522.3 Oral Employment Agreement
§1530 Quid Pro Quo Harassment
§1531 Occurrence Interrogatories—Plaintiff to Defendant
§1531.1 Sexual Solicitation
§1531.2 Sexual Assault
§1531.3 Sexual Fondling
§1531.4 Sexual Comment
§1531.5 Sexual Gestures
§1531.6 Sexual Criticism
§1531.7 Defendant’s Contentions re Welcomeness
§1532 Occurrence Interrogatories—Defendant to Plaintiff
§1532.1 Sexual Solicitation
§1532.2 Sexual Assault
§1532.3 Sexual Fondling
§1532.4 Sexual Comments
§1532.5 Sexual Gestures
§1532.6 Sexual Criticism
§1532.7 Unwelcomeness
§1532.8 Protest by Plaintiff
§1533 Causation—Plaintiff to Defendant
§1533.1 Termination of Employment
§1533.2 Persons Involved in Termination Decision
§1533.3 Failure to Promote
§1533.4 Loss of Pay Increase
§1533.5 Demotion
§1533.6 Claim of Good Cause for Adverse Job Determination
§1533.6.1 Performance Reviews
§1533.6 2 Training and Other Corrective Measures
§1533.6.3 Consideration of Other Discipline Options
§1533.6.4 Comparison to Performance of Other Employees
§1534 Causation–Defendant to Plaintiff
§1534.1 Alleged Job Detriment
§1534.2 Performance Criticisms
§1534.3 Performance Reviews
§1534.4 Comparative Job Performance
§1534.5 Compliance to Obtain Job Benefit
§1540 Hostile Environment Harassment
§1541 Occurrence Interrogatories—Plaintiff to Defendant
§1541.1 Unwanted Conduct
§1541.2 Unwelcomeness
§1542 Occurrence Interrogatories—Defendant to Plaintiff
§1542.1 Specified Conduct
§1542.2 Unwelcomeness
§1543 Causation
§1543.1 Plaintiff to Defendant
§1543.2 Defendant to Plaintiff
§1544 Employer Liability
§1544.1 Plaintiff to Defendant
§1544.1.1 Employer’s Actual Notice
§1544.1.2 Employer’s Constructive Knowledge
§1544.1.3 Adoption of Company Policy Preventing Sexual Harassment
§1544.1.4 Publication of Policy Prohibiting Harassment
§1544.1.5 Preventive Training Program
§1544.1.6 Investigation of Sexual Harassment Complaints
§1544.1.7 Employer’s Prompt Remedial Response
§1544.1.8 Sufficient Remedial Response
§1544.2 Defendant to Plaintiff
§1544.2.1 Employer’s Actual Knowledge
§1544.2.2 Employer’s Constructive Knowledge
§1544.2.3 Publication of Company Policy
§1544.2.4 Preventive Training Program
§1544.2.5 Failure to Investigate Plaintiff’s Claim
§1544.2.6 Remedial Response
§1550 Affirmative Defenses and Denials
§1551 Plaintiff to Defendant
§1551.1 Defendant’s Contentions
§1551.2 Failure to Exhaust Internal Remedies
§1551.3 Failure to Exhaust Administrative Remedies
§1551.4 Collateral Estoppel
§1551.5 Statutory Pre–emption
§1552 Defendant to Plaintiff
§1552.1 Failure to Exhaust Internal Remedies
§1552.2 Failure to Exhaust Administrative Remedies
§1552.3 Statutory Preemption
§1560 Damages in Title VII Cases
§1561 Plaintiff to Defendant
§1561.1 Back Pay
§1561.2 Pension and Retirement
§1561.3 Vacation and Sick Leave
§1561.4 Medical Insurance Coverage
§1561.5 Overtime
§1561.6 Front Pay
§1561.7 Emotional Distress Damages
§1561.8 Defendant’s Contentions re Plaintiff’s Failure to
Mitigate Damages
§1562 Defendant to Plaintiff
§1562.1 Back Pay
§1562.2 Pension and Retirement
§1562.3 Vacation or Sick Leave
§1562.4 Overtime
§1562.5 Other Fringe Benefits
§1562.6 Plaintiff’s Contentions re Emotional Distress Damages
§1562.7 Failure to Mitigate Damages
§1563 Punitive Damages
§1570 Investigatory Interrogatories
§1571 Witnesses
§1572 Expert Identification
§1573 Surveillance
§1574 Insurance
§1575 Due Diligence in Preparation of Response
Chapter 16 - Age Discrimination
§1600 Introduction
§1601 Elements of Plaintiff’s Cause of Action
§1601.1 Membership in Protected Group
§1601.2 Employee/Applicant Job Qualifications
§1601.3 Adverse Effect
§1601.4 Hire/Replacement With Similar Qualifications
§1602 Employer Defenses
§1603 Pretext
§1604 Remedies
§1605 Other Theories of Recovery
§1606 Definitions
§1610 Basic Information
§1611 Information Regarding Employer
§1611.1 Business Format
§1611.2 Personal Data
§1611.3 Similar Claims and Legal Proceedings
§1612 Information Regarding Plaintiff
§1612.1 Employment History
§1612.2 Prior Age Discrimination Claims
§1612.3 Miscellaneous Personal Information
§1620 Terms of Employment
§1621 Plaintiff to Defendant
§1621.1 Hiring of Plaintiff
§1621.2 Written Employment Agreement
§1621.3 Oral Employment Agreement
§1622 Defendant to Plaintiff
§1622.1 Fact of Hire
§1622.2 Oral Employment Agreement
§1630 Age Discrimination in Employment
§1631 Occurrence lnterrogatories—Plaintiff to Defendant
§1631.1 Termination of Employment
§1631.2 Failure to Promote
§1631.3 Failure to Retrain
§1631.4 Refusal to Hire
§1631.5 Involuntary Retirement
§1632 Occurrence lnterrogatories—Defendant to Plaintiff
§1632.1 Termination of Employment
§1632.2 Failure to Promote
§1632.3 Failure to Retrain
§1632.4 Refusal to Hire
§1632.5 Involuntary Retirement
§1640 Defenses
§1641 Plaintiff to Defendant
§1641.1 Bona Fide Occupational Qualification
§1641.2 Reasonable Factor Other Than Age
§1641.3 Reduction in Force
§1641.4 Bona Fide Seniority System
§1641.5 Discharge For Good Cause
§1642 Employer Defenses-Defendant to Plaintiff
§1642.1 Bona Fide Occupational Qualification
§1642.2 Reasonable Factor Other than Age
§1642.3 Reduction in Force Termination
§1642.4 Bona Fide Seniority System
§1642.5 Good Cause For Termination
§1650 Claim of Pretext
§1660 Affirmative Defenses and Denials
§1661 Plaintiff to Defendant
§1661.1 Defendant’s Contentions
§1661.2 Failure to Exhaust Internal Remedies
§1661.3 Failure to Exhaust Administrative Remedies
§1661.4 Collateral Estoppel
§1662 Defendant to Plaintiff
§1662.1 Failure to Exhaust Internal Remedies
§1662.2 Failure to Exhaust Administrative Remedies
§1670 Damages in ADEA Age Discrimination Cases
§1671 Plaintiff to Defendant
§1671.1 Back Pay
§1671.2 Pension and Retirement
§1671.3 Vacation and Sick Leave
§1671.4 Medical Insurance Coverage
§1671.5 Overtime
§1671.6 Front Pay
§1671.7 Liquidated Damages—Willfulness
§1671.8 Defendant’s Contentions re Plaintiff’s Failure to
Mitigate Damages
§1672 Defendant to Plaintiff
§1672.1 Back Pay
§1672.2 Pension and Retirement
§1672.3 Vacation and Sick Leave
§1672.4 Overtime
§1672.5 Other Fringe Benefits
§1672.6 Plaintiff’s Contentions re Calculation of Front Pay Claim
§1672.7 Plaintiff’s Contentions re Willfulness
§1672.8 Failure to Mitigate Damages
§1680 Investigatory Interrogatories
§1681 Witnesses
§1682 Surveillance
§1683 Insurance
§1690 Due Diligence in Preparation of Response
Chapter 17 - Workplace Violence
§1700 Introduction
§1701 Elements of Plaintiff’s Cause of Action
§1701.1 Claims by Third Parties—Direct Liability
§1701.2 Claims Initiated by Third Parties—Vicarious Liability
§1701.3 Claims Initiated by Coworkers
§1702 Employer Defenses
§1703 Definitions
§1710 Basic Information Regarding Employer
§1711 Identification of Employer
§1712 Business Format of Employer
§1713 Similar Claims and Legal Proceedings
§1720 Basic Information Regarding Claimant
§1721 Birth Information
§1722 Education
§1723 Military Record
§1724 Marital Status
§1725 Employment
§1726 Criminal Record
§1730 Employer Direct Liability to Third Parties
§1731 Plaintiff to Defendant
§1731.1 Fact of Hire and Employee Duties
§1731.2 Individuals Involved in Hiring Decision
§1731.3 Employer’s Actual Notice
§1731.4 Employer’s Constructive Knowledge
§1731.5 Adoption of Company Policy Relating to Employee Supervision
§1731.6 Employer Liability for Negligent Supervision
§1731.7 Negligent Supervision—Employer’s Constructive
Knowledge
§1731.8 Employer Liability—Negligent Retention
§1731.9 Employer Liability—Unsafe Premises
§1732 Defendant to Plaintiff
§1732.1 Plaintiff’s Contentions re Negligent Hiring
§1732.2 Plaintiff’s Contentions re Negligent Supervision
§1732.3 Employer Direct Liability—Negligent Retention
§1732.4 Employer Direct Liability—Unsafe Premises
§1740 Employer Vicarious Liability to Third Parties
§1741 Plaintiff to Defendant
§1741.1 Scope of Employment
§1741.2 Ratification
§1742 Defendant to Plaintiff
§1742.1 Plaintiff’s Contentions re Employment Relationship
§1742.2 Plaintiff’s Contentions re Scope of Employment
§1742.3 Plaintiff’s Contentions re Ratification
§1750 Employer Liability for Injury to Employee
§1751 Plaintiff to Defendant
§1751.1 Employer Contentions re Authorization
§1751.2 Employer Contentions re Ratification
§1751.3 Employer Contentions re Willful Concealment
§1751.4 Employer Contentions re Risks of Employment
§1752 Defendant to Plaintiff
§1752.1 Employee Contentions re Authorization
§1752.2 Employee Contentions re Ratification
§1752.3 Employee Contentions re Willful Concealment
§1752.4 Employee Contentions re Risks of Employment
§1760 Affirmative Defenses and Denials
§1761 Plaintiff’s Contributory/Comparative Negligence
§1762 Plaintiff’s Assumption of the Risk
§1763 Statutory Preemption
§1770 Damages
§1771 Defendant to Plaintiff
§1771.1 Plaintiff’s Contentions re General Damages
§1771.2 Plaintiff’s Contentions re Emotional Distress
§1771.3 Plaintiff’s Contentions re Loss of Consortium
§1771.4 Plaintiff’s Contentions re Special Damages
§1772 Plaintiff to Defendant
§1772.1 Defendant’s Contentions re Plaintiff’s Special
Damages
§1780 Investigatory Interrogatories
§1781 Witnesses
§1782 Expert Witness Identification
§1783 Surveillance
§1784 Insurance
§1785 Due Diligence in Preparation of Response
Chapter 18 - Fraud and Deceit
§1800 Elements of Plaintiff’s Cause of Action
§1801 Intentional Misrepresentation
§1802 Fraudulent Concealment or Non-Disclosure
§1803 Negligent Misrepresentation
§1804 Constructive Fraud
§1805 A Note on Election of Remedies
§1810 Definitions
§1820 Identification of Defendant
§1830 Agency
§1840 Basic Transaction Information
§1850 Intentional Misrepresentation of Fact
§1851 Plaintiff to Defendant
§1851.1 Misrepresentation of Material Fact
§1851.1.1 Statement of Opinion
§1851.1.2 Opinion Implying Supporting Facts
§1851.1.3 Misrepresentation of Intention
§1851.2 Knowledge of Falsity (Scienter)
§1851.3 Intention to Induce Reliance
§1851.4 Actual and Justifiable Reliance
§1851.4.1 Actual Reliance
§1851.4.2 Justifiable Reliance
§1851.5 Damages
§1851.5.1 Pecuniary Loss—Action for Damages
§1851.5.2 Pecuniary Losses—Action for Rescission and Restitution
§1851.5.2.1 Restitution—Restoration of Consideration
§1851.5.2.2 Waiver of Right to Rescind
§1851.5.3 Action for Damages—Personal Injuries Resulting from
Fraudulent Misrepresentation
§1851.5.4 Punitive Damages
§1852 Defendant to Plaintiff
§1852.1 Misrepresentation of Material Fact
§1852.1.1 Statement of Opinion
§1852.1.2 Opinion Implying Supporting Facts
§1852.1.3 Misrepresentation of Intention
§1852.2 Knowledge of Falsity (Scienter)
§1852.3 Intention to Induce Reliance
§1852.3.1 Actual and Justifiable Reliance
§1852.3.1.1 Actual Reliance
§1852.3.1.2 Justifiable Reliance
§1852.4 Damages
§1852.4.1 Pecuniary Losses—Action for Damages
§1852.4.2 Pecuniary Losses—Action for Rescission and Restitution
§1852.4.2.1 Restoration of Consideration
§1852.4.2.2 Waiver of Right to Rescind
§1852.4.3 Action for Personal Injuries
§1852.4.4 Punitive Damages
§1860 Negligent Misrepresentation
§1861 Plaintiff to Defendant
§1861.1 Absence of Reasonable Ground to Support Represented Facts
(Scienter)
§1861.1.1 Limitation—Class of Persons Entitled to Rely Upon
Representation
§1861.1.2 Limitation—Business Purpose for Representation
§1861.2 Damages
§1861.2.1 Limitation on Scope of Recoverable Damages
§1861.3 Defenses—Plaintiff’s Comparative Negligence
§1862 Defendant to Plaintiff
§1862.1 Reasonable Ground for Belief in Truth (Scienter)
§1862.1.1 Limitation—Class of Persons Entitled to Rely Upon
Representation
§1862.1.2 Limitation—Representation Made in a Business Setting
§1862.2 Damages
§1862.2.1 Limitation—Damages Related to Induced Action
§1870 Fraudulent Concealment and Nondisclosure
§1871 Plaintiff to Defendant—Active Concealment
§1872 Plaintiff to Defendant—Actionable Nondisclosure
§1872.1 Fact of Nondisclosure
§1872.2 Duty to Disclose—Fiduciary Relationship
§1872.3 Duty to Disclose—Confidential Relationship
§1872.4 Duty to Disclose—Superior Knowledge
§1872.5 Partial Disclosure
§1873 Defendant to Plaintiff
§1873.1 Active Concealment
§1873.2 Nondisclosure—Defendant to Plaintiff
§1873.2.1 Fact of Nondisclosure
§1873.2.2 Nondisclosure—Fiduciary Relationship
§1873.2.3 Nondisclosure—Confidential Relationship
§1873.3 Duty to Disclose—Superior Knowledge
§1873.3.1 Duty to Disclose—Partial Disclosure
§1880 Constructive Fraud
§1881 Constructive Fraud—Plaintiff to Defendant
§1881.1 Existence of Fiduciary Relationship
§1881.2 Existence of Confidential Relationship
§1882 Constructive Fraud—Defendant to Plaintiff
§1882.1 Existence of Fiduciary Relationship
§1882.2 Existence of Confidential Relationship
§1890 Investigatory Interrogatories
§1891 Witnesses
§1892 Expert Identification
§1893 Surveillance
§1894 Insurance
§1895 Due Diligence in Preparation of Response
Chapter 19 - Other Insurance Claims
§1900 Managed Health Care Insurance Accountability Act of 1999
§1901 Basic Information Regarding Parties
§1902 Plan Enrollment
§1903 Persons Entitled to Health Care Benefits
§1904 Treatment Recommendation by Health Care Provider
§1905 Experts Used in Evaluation Process
§1906 Denial of Health Care Service
§1907 Delay of Recommended Health Care Services
§1908 Modification of Recommended Health Care Service
§1909 Plan Decisions Resulting in Substantial Harm
Chapter 20 - Elder Abuse
§2000 Introduction
§2001 Elements of Plaintiff’s Elder Abuse Cause of
Action—Physical Abuse
§2002 Elements of Plaintiff’s Cause of Action—Neglect
§2003 Elements of Plaintiff’s Cause of Action—Financial Abuse
§2004 Definitions
§2010 Identification of Defendant
§2011 Education, Training, Certification and Licensure of Defendant
§2011.1 Education
§2011.2 Certification and Licensure
§2012 Defendant’s Relationship to Plaintiff
§2012.1 Documentation Regarding Relationship
§2020 Physical Abuse Claims
§2021 Assault/Battery
§2022 Sexual Assault
§2023 Use of Physical Restraint for Punishment
§2024 Overuse of Physical Restraint
§2025 Excessive Use of Psychotropic Medication
§2030 Physical Abuse Cases—Defendant to Plaintiff
§2031 Assault/Battery
§2032 Sexual Assault
§2033 Use of Physical Restraint for Punishment
§2034 Overuse of Physical Restraint
§2035 Excessive Use of Psychotropic Medication
§2040 Elder Abuse Claims Based Upon Neglect
§2041 Failure to Assist in Personal Hygiene
§2042 Failure to Assist in the Provision of Food, Clothing or Shelter
§2043 Failure to Provide Medical Care
§2044 Failure to Protect from Safety Hazards
§2045 Violation of Administrative Regulation
§2046 Failure to Train
§2047 Failure to Correct Conditions
§2050 Financial Abuse
§2051 Misappropriation of an Elder’s Money or Property
§2051.1 Nature of Relationship Between Elder and Defendant
§2051.2 Taking of Property
§2051.3 Fraudulent Acquisition
§2051.4 Affirmative Misrepresentation
§2051.5 Concealment
§2052 Financial Abuse Based on Failure to Return Property
§2052.1 Defendant Acquisition of Property
§2052.2 Legal or Equitable Ownership of the Property
§2052.3 Property Belonging to the Elder
§2052.4 Property Held Under Express Trust
§2052.5 Property Held Under Resulting Trust
§2052.6 Property Held Under Constructive Trust
§2052.7 Affirmative Misrepresentation
§2052.8 Concealment
§2052.9 Failure to Return Property
§2052.10 Acts Committed in Bad Faith
§2060 Financial Abuse - Defendant to Plaintiff
§2061 Misappropriation
§2061.1 Nature of Defendant’s Relationship to Plaintiff
§2061.2 Taking of Property
§2061.3 Fraudulent Acquisition
§2062 Defendant to Plaintiff—Financial Abuse Based on Failure to
Return Property
§2062.1 Defendant Acquisition of Property
§2062.2 Legal or Equitable Ownership of the Property
§2062.3 Property Held Under Express Trust
§2062.4 Property Held Under Resulting Trust
§2062.5 Property Held Under Constructive Trust
§2062.6 Failure to Return Property
§2062.7 Acts Committed in Bad Faith
§2070 Professional Negligence v. Custodial Care
§2071 Professional Negligence v. Custodial Negligence—Plaintiff to
Defendant
§2072 Professional Negligence v. Custodial Negligence—Defendant to
Plaintiff
§2080 Damages in Elder Abuse Cases
§2081 Special Damages—Plaintiff to Defendant
§2082 Special Damages—Defendant to Plaintiff
§2083 General Damages—Plaintiff to Defendant
§2084 General Damages—Defendant to Plaintiff
§2085 Enhanced Damages—The Requisite Mental State
§2085.1 Recklessness
§2085.2 Oppression
§2085.3 Fraud
§2085.4 Malice
§2085.5 The Requisite Mental State Defendant to Plaintiff
§2086 Enhanced Damages—Defendant’s Ratification of
Agent’s Conduct
§2086.1 Plaintiff to Defendant
§2086.2 Defendant to Plaintiff
§2090 Investigatory Interrogatories
§2091 Witnesses
§2091.1 Lay Witnesses
§2091.2 Expert Witnesses Identification
§2092 Opposing Party’s Surveillance
§2093 Insurance
§2094 Due Diligence in Preparation of Response
Chapter 21 - Interference with Business Relations
§2100 Introduction
§2101 Elements of Plaintiff’s Cause of Action
§2101.1 Interference with Contractual Relations
§2101.2 Interference with Prospective Economic Relations
§2102 Defenses in Interference with Business Relations Cases
§2103 Definitions
§2110 Basic Information
§2111 Information Regarding Defendant
§2111.1 Identification of Defendant
§2111.2 Personal Data Regarding the Defendant
§2111.3 Agency Relationships
§2111.4 Similar Claims and Legal Proceedings
§2112 Information Regarding the Plaintiff
§2112.1 Personal Information Regarding the Plaintiff
§2112.2 Prior Actions for Interference with Business Relations
§2120 Interference with Existing Contractual Relations – Plaintiff
to Defendant
§2121 Existence of Contract
§2121.1 In General
§2121.2 Unenforceable Contract
§2121.3 Contracts Subject to Conditions Precedent
§2121.4 Void Contract
§2121.5 Contract Terminable at Will
§2122 Contract Between Plaintiff and a Third Party
§2122.1 Defendant as the Alter Ego of a Party to the Contract
§2122.2 Conspiracy Claims Against Other Contracting Party
§2123 Defendant’s Knowledge of Existing Contract
§2124 Acts or Conduct Interfering with Contractual Relations
§2124.1 Acts or Conduct Inducing Breach
§2124.2 Conduct Rendering Plaintiff’s Performance More Difficult
§2125 Causation
§2126 Damages
§2126.1 Past Economic Losses
§2126.2 Future Economic Losses
§2126.3 Loss of Goodwill
§2126.4 Emotional Distress Damages
§2126.5 Punitive Damages
§2130 Interference with Existing Contractual Relations – Defendant
to Plaintiff
§2131 Existence of Contract
§2131.1 In General
§2131.2 Unenforceable Contract
§2131.3 Contracts Subject to Conditions Precedent
§2131.4 Void Contract
§2131.5 Contract Terminable at Will
§2132 Contract Between Plaintiff and a Third Party
§2132.1 Defendant as the Alter Ego of a Party to the Contract
§2132.2 Conspiracy Claims Against Other Contracting Party
§2133 Defendant’s Knowledge of Existing Contract
§2134 Acts or Conduct Interfering with Contractual Relations
§2134.1 Acts or Conduct Inducing Breach
§2134.2 Conduct Rendering Plaintiff’s Performance More Difficult
§2135 Causation
§2136 Damages
§2136.1 Past Economic Losses
§2136.2 Future Economic Losses
§2136.3 Loss of Goodwill
§2136.4 Emotional Distress Damages
§2136.5 Punitive Damages
§2140 Interference with Prospective Economic Damage – Plaintiff to
Defendant
§2141 Existing Economic Relationship
§2141.1 In General
§2141.2 Unenforceable Contract
§2141.3 Contracts Subject to Conditions Precedent
§2141.4 Contract Terminable at Will
§2142 Relationship Between Plaintiff and a Third Party
§2142.1 Defendant as the Alter Ego of a Party to the Relationship
§2142.2 Conspiracy Claims Against Other Party to the Relationship
§2143 Reasonable Probability of Future Economic Benefit
§2144 Defendant’s Knowledge of Existence of Relationship
§2145 Acts or Conduct Designed to Interfere with Relationship
§2145.1 Acts or Conduct Inducing Termination of Relationship
§2145.2 Conduct Diverting Plaintiff’s Prospective Economic
Opportunity to Defendant
§2146 Causation
§2147 Damages
§2147.1 Past Economic Losses
§2147.2 Future Economic Losses
§2147.3 Loss of Goodwill
§2147.4 Emotional Distress Damages
§2147.5 Punitive Damages
§2150 Interference with Prospective Economic Damage – Defendant to
Plaintiff
§2151 Existing Economic Relationship
§2151.1 Unenforceable Contract
§2151.2 Contracts Subject to Conditions Precedent
§2151.3 Contract Terminable at Will
§2152 Relationship Between Plaintiff and a Third Party
§2152.1 Defendant as the Alter Ego of a Party to the Relationship
§2152.2 Conspiracy Claims Against Other Party to the Relationship
§2153 Reasonable Probability of Future Economic Benefit
§2154 Defendant’s Knowledge of Existence of Relationship
§2155 Acts or Conduct Designed to Interfere with Relationship
§2155.1 Acts or Conduct Inducing Termination of Relationship
§2155.2 Conduct Diverting Plaintiff’s Prospective Economic
Opportunity to Defendant
§2155.3 Conduct Wrongful by Some Measure Other than the Fact of
Interference
§2156 Causation
§2157 Damages
§2157.1 Past Economic Losses
§2157.2 Future Economic Losses
§2157.3 Loss of Goodwill
§2157.4 Emotional Distress Damages
§2157.5 Punitive Damages
§2160 Defenses to Claims for Interference with Business Relations
– Plaintiff to Defendant
§2161 Privilege in General
§2162 Privilege for Fair Competition – Interference with
Contractual Relations
§2163 Privilege for Fair Competition – Interference with
Prospective Relationship
§2164 Defendant’s Financial Interest in Business
§2165 Manager’s Privilege
§2166 Litigation Privilege
§2170 Defenses to Claims for Interference with Business Relations
– Defendant to Plaintiff
§2171 Privilege for Fair Competition – Interference with
Contractual Relations
§2172 Privilege for Fair Competition – Interference with
Prospective Relationship
§2173 Defendant’s Financial Interest in Business
§2174 Manager’s Privilege
§2175 Litigation Privilege |
